Judge Stephen I. Goorvitch, Case Number: 22STCV37369, Date: 2025-04-09 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCV37369, Date: 2025-04-09 Tentative Ruling

Cross-Complainant Lisa Marie Vernola Salas (“Salas” or “Cross-Complainant”) moves for a writ of attachment against Cross-Defendant Urban Soccer 5 Center, LLC (“Urban Soccer” or “Cross-Defendant”). Urban Soccer opposes the application.[1] The court grants the application in the amount of $534,983.15.

“Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” (Code Civ. Proc. § 483.010.)

The court shall issue a right to attach order if the court finds all of the following:

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff has established the probable validity of the claim upon which the attachment is based.

(3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Code Civ. Proc. § 481.190.) “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”¿(Code Civ. Proc. § 484.030.)¿ “In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.”¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) “The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

The court rules as follows on Urban Soccer’s evidentiary declarations: Nos. 1, 4, and 5 are overruled, and Nos. 2 and 3 are sustained.

The application is based on Salas’s cause of action for breach of contract. To establish a claim for breach of contract, a plaintiff must prove: (1) The parties had a valid contract;

(2) Plaintiff performed under the contract or had an excuse for non-performance; (3) Defendant breached the contract; and (4) Plaintiff was damaged as a result of Plaintiff’s breach. (See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.)

On or about July 23, 2014, the parties entered into a commercial lease (the “Lease”).[2] Salas leased commercial property located at 12000 Firestone Boulevard in Norwalk, California (the “Premises”) to Urban Soccer. (Salas Decl. ¶ 6, Exh. B; Bouharkat Decl. ¶ 2, Exh. 1; First Amended Complaint (“FAC”) ¶ 13.) The Premises consist of approximately 185,130 square feet of commercial property inclusive of structures totaling approximately 40,000 square feet. (Salas Decl. Exh. B at ¶ 1.2) Pursuant to the Lease, the agreed use is for “General office, sales and parking for public soccer center and incidental thereto.” (Id. ¶ 1.7.) The term of the Lease was ten years commencing September 1, 2014, and ending August 31, 2024. (Id. ¶ 1.3.) Although there was an option to renew the Lease automatically, the renewal clause requires that:

“(i) Tenant is current with all rent payment obligations; (ii) has never been late with any rent payment obligation and (iii) does not have any other uncured breaches under the terms of the Lease.” (see Id. Exh. A.) Salas submits evidence that Urban Soccer has remained in possession as a holdover tenant and that it has failed to pay rent since approximately January 2024. (See id. ¶ 11.) Since the base rent is $41,152.55 per month, Salas submits evidence that she has been damaged by Urban Soccer’s breach of the Lease in the principal amount of $534,983.15 (13 x $41,152.55). (Ibid.)

Urban Soccer argues that Salas does not have a valid claim because she and the other tenants breached the lease: “Landlord breached the implied covenant of quiet enjoyment and committed constructive eviction by unlawfully double-leasing 7,784 square feet of Urban Soccer’s Premises to other two tenants.” (Oppo. 7 [emphasis added].) Urban Soccer’s managing member, Yacine Bouharkat, declares:

Section 1.2 of the Commercial Lease provides that the Premises as “an approximate 185,130 squuare foot [sic] commercial property inclusive of numerous structures totaling approximately 40,000 square feet.” (“Premises”). However, the Landlord double-leased 7,784 square feet of the Premises to other tenants. Specifically, 6,505 square feet of the Premises is double leased to the adjacent tenant, Enterprise Rent-A-Car LLC; and 1,279 square feet, of the Premises is double leased to another tenant Key West Auto Collison Center Inc….

Due to the fact that Landlord double-leased 7,784 square feet of the Premises to other two tenants Enterprise Rent-A-Car, and Key West Auto Collison Center Inc., Urban Soccer has been prevented from adding two additional soccer fields, resulting in a loss of 20% of annual revenue.

(Bouharkat Decl. ¶¶ 3-4.) Urban Soccer also submits a declaration of Daryl Johnson, a real estate appraiser, which includes images of the Premises that show the 7,784 square feet that were allegedly “double-leased.” (Johnson Decl. ¶¶ 5-9.)

In fact, this evidence, including the photos of the Premises, show that Salas has not interfered with Urban Soccer’s use and enjoyment of the vast majority of the 185,130 square-foot Premises. (See Johnson Decl. ¶¶ 5-9.) Urban Soccer concedes that it has continued to use multiple soccer fields on the Premises and has generated substantial revenues from them. (Id. ¶¶ 11-12.) Further, Urban Soccer remains in possession of the Premises. (Salas Decl. ¶ 11; see Bouharkat Decl. generally.) Because Urban Soccer remains in possession, it has not been “constructively evicted” and its duty to pay rent continues notwithstanding the landlord’s alleged interference with Urban Soccer’s use and possession. (Petroleum Collections Inc., supra, 48 Cal.App.3d at 846-847.)

Urban Soccer argues that it is entitled to an offset. Code of Civil Procedure section 483.015(b)(2) provides that the amount to be secured by the attachment may be reduced by “[t]he amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued.” (emphasis added.) Urban Soccer has the burden of proof to satisfy the requirements of attachment for any offset claim, including by showing damages in a fixed or readily ascertainable amount. (See CCP §§ 483.015 and 483.010(a); see also Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)

Urban Soccer claims that the alleged double-leasing has caused Urban Soccer an estimated $1,646,670.00 in economic losses from “what two additional soccer fields would have generated had Urban Soccer 5 Center, LLC been allowed to use the entire leased area” for the period 2016 through 2024. (Johnson Decl. ¶¶ 10-11.) Urban Soccer relies on an analysis of economic losses that considers the “Total Annual Revenue from 2016 through 2024 based on the income generated from the current ten (10) soccer fields, reflecting the company's actual performance.” (Id. ¶ 11.) However, Urban Soccer does not show that this claim satisfies the following requirement for pre-judgment attachment:

[A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. The fact that the damages are unliquidated is not determinative. But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.

(CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541, citations omitted [emphasis added].)

As applied here, Urban Soccer has not shown that the Lease provides a standard by which Urban Soccer’s economic damages for alleged double-leasing can be determined by proof. In effect, Urban Soccer seeks to recover lost profits—a form of consequential damages—that Urban Soccer allegedly suffered when it could not use part of the Lease premises. Urban Soccer does not show that the Lease provides a basis for computing such lost profits. Accordingly, Urban Soccer’s offset claim must be denied for this reason alone. The court also finds that Urban Soccer’s calculations of lost profits are not reasonably certain and sufficient to support attachment under the probable validity standard. (See Johnson Decl. ¶¶ 10-11.) Specifically, Johnson calculates “loss of income” by dividing total “revenues” by 10 soccer fields, but he does not explain why it should be assumed that revenues are sufficient evidence of the loss of income for two hypothetical fields, which have not been constructed. Accordingly, for both these reasons, Urban Soccer has not shown that Salas’s attachment may be reduced for alleged double-leasing.

Finally, Urban Soccer contends that Salas has not proven that her claim is probably valid because: (1) “Urban Soccer overpaid rent for years because its rent includes water and electricity bills of other tenants;” (2) “Urban Soccer overpaid rent for years because of Landlord’s misrepresentation of parking rights & common area maintenance fees;” (3) “Landlord breached the lease by failing to install the fence and gates;” and (4) “Landlord breached the lease by withholding the assignment of the lease unreasonably.” (Oppo. 7-10.)

“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract.” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.) “Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact.” (Ibid.) Whether a partial breach of a contract is material depends on “the importance or seriousness thereof and the probability of the injured party getting substantial performance,” among other factors. (Id. at 278.)

Urban Soccer has not shown that the other alleged breaches of the Lease were of such importance or seriousness that its obligation to pay rent was discharged. Urban Soccer has not shown it vacated the Premises or was “constructively evicted” because of these alleged breaches. (See Bouharkat Decl. ¶¶ 5-8.) Thus, as with the “double-leasing,” Urban Soccer apparently seeks to offset Salas’s attachment based on the alleged damages that Urban Soccer suffered because of other alleged breaches or overpayments. However, Urban Soccer has not shown that the Lease provides a standard by which its damages for these alleged breaches of the Lease can be determined by proof. Moreover, even if the Lease did provide a standard for calculating the damages, Urban Soccer does not identify, or provides calculations for, any specific damages that it allegedly suffered from these alleged breaches of the Lease or overpayments. (See Ibid.) To illustrate, Bouharkat declares that “Urban Soccer has been paying more than its proportionate share in property taxes,” but he does not state or calculate the amount of such overpayment. (Id. ¶ 5.)

Based on the foregoing, Salas has shown that she probably has a valid claim for breach of contract in the amount of $534,983.15. Urban Soccer has not proven any defense to this claim or demonstrated that it is necessarily entitled to an offset.

“[A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees.” (Code Civ. Proc. § 483.010(a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….” (Code Civ. Proc. § 483.010(b).)

Here, Salas’s application for writ of attachment is based on a contract claim for which the total amount allegedly due exceeds $500. The claim is not secured by real property. The court finds that Salas’s damages for unpaid rent are fixed and readily ascertainable from the terms of the Lease and her declaration. Stated differently, the calculation of unpaid rent can be easily determined from the Lease provision specifying the monthly rent (¶ 53) and evidence concerning the number of months that Urban Soccer has failed to pay rent while still in possession of the Premises.

Urban Soccer contends that other types of damages, such as taxes, late fees, and interest, may not be fixed and readily ascertainable from the Lease or may be sufficiently uncertain such that a writ of attachment cannot issue. (Oppo. 4-5.) In the application, Salas expressly limited the requested attachment to unpaid rent in the amount of $534,983.15. (Appl. ¶ 8.) Because Salas does not seek attachment of taxes, late fees, and interest, the court need not decide whether such damages are fixed and readily ascertainable within the meaning of attachment law.

Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.” The court finds that Salas satisfied these requirements.

Urban Soccer’s arguments to the contrary are not persuasive. (Oppo. 10-11.) Salas has declared, under penalty of perjury, that “[a]ttachment is not sought for a purpose other than the recovery on a claim upon which the attachment is based.” (Appl. ¶ 4.) That verified statement satisfies section 484.090. Salas does not have an obligation to explain further why she “needs” attachment. (Oppo. 10:1-2.) Contrary to Urban Soccer’s assertion, Salas was not required to prove that she will suffer great or irreparable injury if an attachment is not issued. (Oppo. 11:11-24.) A showing of “great and irreparable injury” is only required for an application for attachment sought on an ex parte basis. (Code Civ. Proc. § 485.010(a).) Nor is Urban Soccer correct in its suggestion that attachment is not appropriate in a case of this nature.

D. Reduction of Amount to be Secured – As discussed, Urban Soccer has not shown that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b).

Salas requests attachment of any property of Urban Soccer, a limited liability corporation. (Application ¶ 9c.) That request is proper. “[A]ll corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8” may be attached. (CCP § 487.010(a).)

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000.

Urban Soccer argues that it may be recover “costs” of defeating a “wrongful attachment.” (Oppo. 12.)

If, upon objection to the undertaking, the court determines that the probable recovery for wrongful attachment exceeds the amount of the undertaking, it shall order the amount of the undertaking increased to the amount it determines to be the probable recovery for wrongful attachment if it is ultimately determined that the attachment was wrongful.

(Code Civ. Proc. § 489.220(b).) However, Urban Soccer does not argue for an amount higher than $10,000. Nor does Urban Soccer submit evidence suggesting that the probable recovery for wrongful attachment will exceed $10,000. Therefore, Urban Soccer does not show that the court should set an undertaking in excess of $10,000.

1. The court grants Salas’s application for a writ of attachment in the amount of $534,983.15.

[1] On April 3, 2025, Salas filed an objection to the opposition on the grounds it was untimely. The objection is overruled. The opposition was timely filed and served on April 2, 2025, five court days prior to the hearing. (See Code Civ. Proc. § 484.060(a) [the opposition to an application for writ of attachment must be filed and served no later than five court days prior to the hearing].)

[2] The application for writ of attachment was brought solely by Salas. However, Urban Soccer admits in the FAC that Salas is a party to the Lease, and Urban Soccer has not argued that Salas lacks standing to enforce the Lease. (See FAC ¶ 13.)